In October 2017, then-Deputy Director of Immigrations and Customs Enforcement (ICE) Tom Homan publicly announced the agency’s aim to increase workplace investigations “by four or five times” over concerns that employment of undocumented workers makes the United States a “magnet” for illegal immigration. As we begin 2019, we reflect upon whether ICE made good on Mr. Homan’s promise, and what 2018’s events suggest is likely in 2019.

Workplace Enforcement in 2018

As is now generally common knowledge, the Trump administration has made immigration enforcement a top priority. In alignment with President Trump’s campaign promises and related executive order regarding protecting work opportunities for Americans, ICE has significantly increased employer audits, workplace compliance visits, and worksite raids targeting employees as well as employers in 2018.

In 2018, the news cycle frequently highlighted high-profile workplace raids and investigations of businesses for hiring undocumented workers, including the following:

In January 2018, ICE conducted a highly publicized nationwide raid of 7-Eleven stores, while using the raid to publicize the agency’s increased enforcement priorities in a press release issued on the same day.

An ICE enforcement operation targeting immigrants with criminal histories in Los Angeles in February also resulted in the issuance of 122 notices of inspection (audits of hiring records) to various businesses in the area.

In April, a search of a slaughterhouse in Bean Station, Tennessee resulted in the administrative arrest of 104 workers for immigration violations and criminal charges and a prison sentence for the business owner, who pled guilty to tax fraud, wire fraud and employing illegal aliens.

In June, ICE raided four North Ohio meat processor locations.

Between July 16 and 20, as part of a 2-part nationwide operation, ICE served 2,738 notices of investigation for I-9 compliance across the country.

An August investigation resulted in criminal arrests of 17 individuals connected to a conspiracy to exploit unauthorized workers for profit, fraud, wire fraud and money laundering, as well as the issuance of search warrants for agricultural firms in Nebraska, Minnesota, and Nevada.

In August, a Houston waste management company forfeited more than $5.5 million and agreed to perform remedial measures after 5-year ICE investigation found a documented pattern and practice of hiring undocumented workers at a company site.

Also in August, in connection with ICE’s execution of criminal search warrants in North Texas, Homeland Security Investigations (HSI) arrested 160 employees accused of unlawfully working in a trailer-manufacturing business.

In November, an Oklahoma-based pork production plant agreed to a $1 million civil settlement following a 2007-2012 investigation of its employment practices.

ICE’s year-end report for 2018 demonstrates staggering surges over the year in new investigations of businesses related to employment of unauthorized workers. ICE’s press release in December states that HSI, the division responsible for worksite investigations, increased its number of investigations and audits by 300-750% during the past year, including:

Businesses and employers in the Chicagoland area have also felt the impact of increased workplace enforcement; there are significant indications that ICE conducted coordinated and large-scale audits and enforcement actions across multiple industries in the Chicagoland region in calendar year 2018.

While ICE’s year-end announcement says that indictment rates remain similar to the prior year, it also points out that these worksite investigations often take months or years to come to fruition. These actions indicate that ICE has conducted both audits and raids, which can be distinguished from each other; audits focus only on I-9 documentation, and can result in both civil penalties and criminal consequences. Raids often involve significant planning, coordinated inter-agency action, and often result in detention and federal criminal charges for undocumented workers, including for the use of false documents and social security numbers.

Employer Insights:

Public data and our experience suggests that investigations and compliance visits are booming. These actions can be triggered randomly or due to whistleblower or employee complaints, and impact many industries. We therefore recommend that employers continue to plan for the possibility of an ICE audit or raid through a combination of the following actions:

Conduct an internal I-9 audit to assess your records for risk. It is best to conduct an internal audit and take possible corrective actions to address faults in your records. This can also be an opportunity to assess where training in I-9 compliance is required for your staff, and to provide such training. In the event of an I-9 audit by ICE, violations can be very expensive, but may be mitigated where it is apparent that an employer acted in good faith and sought to address errors prior to the audit.

Create a protocol to be followed by your staff in the event of a workplace visit by ICE, and provide your staff with training on that protocol. If your personnel know how to properly respond to ICE agents, how to assess what is being requested and who to contact for assistance, they will feel calmer and less likely to act improperly or escalate the situation. A protocol should address issues such as the point of contact when ICE agents arrive, whether and when to contact counsel, how to request and review or take record of a subpoena, different actions that may be authorized under a subpoena or warrant (such as request for specific records, a general search, or an arrest warrant for specific persons), the rights of workers who may be questioned, and the notice that can be given to staff about events. Conduct training with personnel so that all staff know the company’s protocol and policies.

If you know that your workforce includes immigrants, you can assume that they are likely to be impacted by fears or concerns about ICE’s policy shifts, whether your employees could be directly at risk or whether they are concerned about family or friends who may be at risk. It can be helpful to build rapport by referring staff for confidential legal screenings and helping them find the resources they need to plan for worst-case-scenarios and to access community support programs. Many employees will be concerned about their families if they are arrested at work. Providing referrals to legal counsel that can be kept with families in case of emergency, or allowing staff to post to employee forums or notice boards about Know Your Rights Presentations and support groups may be a way to support your staff. However, employers taking such actions must be very careful to ensure confidentiality and to avoid knowingly (or with constructive knowledge) employing an unauthorized worker

Note that I-9 audits or workplace investigations often lead to investigations by other agency departments, such as the Department of Labor Wage and Hour Division. Be prepared to demonstrate compliance with employment law on all fronts given heightened scrutiny of employers and increased investigations.

Finally, another significant uncertainty is whether Illinois might choose to pass new employee-friendly laws in 2019 that are relevant to worker rights in the event of an ICE audit. An example of such a law is AB 450, a California law prohibiting employers from allowing ICE to access private areas of businesses without a judicial warrant and requiring businesses to notify employees within 72 hours of a Notice of Inspection being issued. Although portions of this law were blocked by a federal court, it is quite possible that states with Democratic majorities will continue to pass new laws on such issues.